THE QUEEN v THOMAS MAX GORDON-GLASSFORD [2001] NZCA 163 (11 June 2001)

IN THE court of appeal of new zealand

ca32/01

THE QUEEN

V

THOMAS MAX GORDON-GLASSFORD

Hearing:	11 June 2001
Coram:	Gault J Anderson J Randerson J
Appearances:	P J Morgan for Appellant M A Woolford for Crown
Judgment:	11 June 2001

judgment of the court DELIVERED BY GAULT J

[1] This appeal is against conviction for theft by failing to account under s222 Crimes Act 1961.

[2] The appellant was tried in the District Court at Hamilton on eight counts. The jury returned guilty verdicts on counts 1, 3, 5 and 7 and acquittals on the remaining counts.The appellant challenges the jury verdicts of guilty on the basis of their inconsistency with verdicts of acquittal in respect of the other, closely related, counts.

Factual Background

[3] Between 1993 and 1997 the appellant operated a business, later incorporated as Agriculture Machinery Marketing Ltd.The nature of the business was primarily to sell second-hand agricultural machinery on behalf of the owners. This usually involved the appellant taking possession of items of farm machinery and displaying them on a yard in Te Awamutu.When he sold an item the appellant would bank the proceeds of the sale into the company's bank account, deduct commission and, after a period of 4 - 6 weeks to ensure there was no "come back", account to the original owner for the balance.In fact the business never traded profitably and by November 1997 the complainants in the various counts had had items of agricultural machinery sold by the appellant but had not received from him the net proceeds of sale.The company went into liquidation leaving the various complainants unpaid.

[4] The defence case at trial was that while the appellant accepted that he had had the legal obligation to account which he had breached, he denied that he did so dishonestly so as to have been fraudulent.

[5] In his evidence the appellant maintained that he had always intended to account to the complainants.He admitted "fobbing" or stalling them off with evasive and false statements but maintained that he was merely delaying in the expectation (or hope) that he would get into a position which enabled him to pay.He referred to moneys paid into the business from the sale of personal assets and family borrowings in support of his optimism.The jury were invited to accept his business activities as confused, muddled or incompetent, but not dishonest.

[6] During the course of the summing-up, the trial Judge gave the conventional direction to the jury that they were to give separate consideration and separate verdicts on the eight counts.He then continued:

There are eight counts and it is clearly common ground between both counsel that although we have eight trials running simultaneously and eight separate verdicts which for convenience we are holding all the counts together, and whilst you do have to be careful that you look at each count in isolation and isolate the evidence relevant to each specific count, there is clearly a degree of kind of common ground because we are talking about a continuum of events over a relatively short time frame and the question ultimately is, what were the facts of each allegation, what do you make of the state of mind of the accused with respect to each transaction or count bearing in mind that some were going on around about the same time, some at the beginning of the time frame.

[7] He also said:

So the focus is right in on whatever you say in your view when you look at each transaction is the material time and it could range from the time of acquisition right through to some point right towards the end.Because there is nothing further, you will have to decide, when, came the point in which he failed to account and then the question for you is, are we satisfied beyond reasonable doubt that whatever that point was as you look at each individual case, he was acting dishonestly with criminal dishonesty at that material time and that is when you look at all those things that both counsel, particularly Crown have addressed ...

[8] At sentencing the Judge did not seek to explain the pattern of verdicts and acquittals but accepted that the jury must have carefully worked through the counts applying the directions that they were given and found that four, in particular, tipped over into guilt.

The Appeal

[9] Mr Morgan for the appellant argued that the verdicts of guilty were unreasonable and could not be supported on the evidence.The primary basis for that submission was the contention that there is no logical basis for the jury to have found the appellant guilty on counts 1, 3, 5 and 7, but not guilty on the even numbered counts.Mr Morgan put it on the basis that the honesty of the complainant was the principle issue at trial.If that was so, he submitted, there was no reasonable basis for the jury to have taken the view that he was dishonest in relation to some counts but were left in a state of doubt in respect of other counts.

[10] Mr Woolford's submission for the Crown was that the jury were entitled to reach different verdicts in respect of the eight different counts having regard to the credibility not only of the appellant but also of each complainant. This was particularly the case, he submitted, where each count revolved around different factual circumstances including separate oral agreements that varied in both terms and specificity.

[11] The applicable principles are quite clear.They are summarised with reference to the relevant authorities in Adams on Criminal Law Ch 5.6.03.It is for the appellant to show that no rational jury could have reached the inconsistent verdicts on the evidence.It is necessary, therefore, to review the evidence relating to each of the transactions.

[12] Count 1.Mr Passau, a retired farmer had a Universal bulldozer he wished to sell.This was at the end of 1994 or early 1995.He arranged with the appellant for the bulldozer to be placed in the yard of the appellant's company at Te Awamutu with a view to sale on his behalf.The asking price was to be $12,500 and there was to be no sale at a lower figure without the approval of the vendor.The bulldozer remained on the yard until at least August of 1997.It was sold, the appellant said, for $6,000.There was produced in evidence an invoice for that amount dated 22 August 1997 and showing the purchase price as having been paid.Mr Passau maintained in his evidence that the bulldozer was seen by him on the property of an adjoining business in Te Awamutu as late as November 1997.

[13] At no time did the appellant inform Mr Passau that the bulldozer was sold. It was only as a result of an inquiry made by him when he noticed the bulldozer had been moved from the sale yard that he learned of the sale.At that point, because he could not locate the appellant, he sought the assistance of the police.Eventually the appellant told him of the sale and referred him to an accountant from whom he learned of the collapse of the appellant's company.

[14] Bank statements for the relevant period in respect of the accounts both of the appellant and his company do not reflect any deposit which would verify the date of sale or the fate of the $6,000 either in August or November.

[15] Count 2.Mr Davies after selling a farm in May 1996 had certain equipment he wished to sell.There were three small items, a spray tank, a set of harrows and a rotary slasher.In addition there was a tractor.He arranged for the appellant to sell the equipment on his behalf.That was in September or October of 1996.Mr Davies gave evidence of persistent enquiries of the appellant thereafter.He learned in February 1997 that the three smaller items had been sold and he secured payment for these from the appellant. The tractor was a substantially more valuable item and was to be sold for a price in the vicinity of $15,000.In fact the tractor was sold on 6 January 1997 but Mr Davies was not told of this.After persistent enquiries he eventually was told, falsely, that the machine had been provided to a potential purchaser on approval.Later he was told that the deposit had been paid and he pressed for and received $3,000 in July 1997.After further persistence Mr Davies was told that the tractor in fact had been sold but not fully paid for.He obtained payment of a further $3,000 in August 1997 but received nothing more.In November the appellant admitted that he had the money obtained for the tractor all along.He maintained he always intended to pay and demonstrated by reference to his company's bank account that within two days after receipt of the price for the tractor the account was in debit without any overdraft arrangement so that he was unable to pay.

[16] Count 3.Mr Whitehead had some nine pieces of agricultural machinery for sale following retirement from farming.At the end of September or October 1996 he arranged for this machinery to be sold on his behalf by the appellant.Prices were agreed for individual items, the largest of which was a tractor for which Mr Whitehead wanted $48,000.The machinery was transported to the yard of the appellant's company.Mr Whitehead was not informed of the sale of any of the items but, when passing, he noticed that some were no longer on display.He secured no satisfactory explanation from the appellant nor payment for any of the items.In February 1997 he went to the yard and collected three of the items still there including the tractor. The appellant subsequently accepted that the other items were sold and that he had not accounted to Mr Whitehead for the price.Mr Whitehead instructed his solicitors and eventually recovered two payments of $5,000 each of the total of some $24,000 representing the value of the machinery sold. Extraordinarily his position was aggravated by the fact that the purchaser of one piece of machinery complained that it was unusable and Mr Whitehead, although the appellant had not accounted to him for the selling price, refunded $3,500 to the purchaser.

[17] The appellant in his evidence acknowledged that he had sold the machinery and had not accounted to Mr Whitehead.He gave no explanation for not having done so.He did explain that after solicitors were involved he used the proceeds of the sale of his son's motor vehicle to meet the payments that were made.

[18] Count 4.Mr Bargh, a farmer, had in 1996 agreed to the appellant selling an item of agricultural machinery on his behalf.That transaction had been carried out successfully and payment was received.In early 1997 the appellant arranged for the sale of a bulldozer on behalf of Mr Bargh.The purchaser inspected the bulldozer on Mr Bargh's property and in his presence and, subject to some repairs arranged by Mr Bargh, the transaction was completed.At about the same time four other items of machinery were taken for sale on behalf of Mr Bargh to the yard of the appellant company.In about July or August 1997 Mr Bargh collected three of the items which were still unsold. The fourth item, a mower, by that time had been sold though not accounted for. Subsequently Mr Bargh instructed solicitors who recovered $4,000.

[19] In his evidence the appellant explained that the purchaser of the bulldozer wanted a different blade and that the appellant supplied this, accepting the blade of Mr Bargh's bulldozer by way of trade.That blade had not been sold when the company went into liquidation.The appellant said that the $4,000 payment was made in part payment on the sale of both the bulldozer and the mower.

[20] Count 5.In the middle of March 1997 Mr Ingham delivered to the yard of the appellant company a maize harvester which was to be sold on his behalf.The following month Mr Ingham passed the yard and noticed the harvester was not there.He was told by the appellant that it had been sold (there is dispute as to the amount said to have been the price) but the purchaser did not want to pay for it until after 1 June which was the changeover of the farming season.Mr Ingham said he went back repeatedly seeking payment without success.Initially the explanation for non-payment was the collapse of a firm of stock agents.The excuses continued on each visit until the liquidation of the company.A post-dated cheque for $800 was handed over but that was dishonoured.On another occasion the appellant did not keep an appointment.

[21] In his evidence, the appellant acknowledged that he had received payment for the harvester after 1 June.His explanation for non-payment was that although there would have been times when he would have had sufficient funds in the bank account, probably someone was more pressing or he just tried to hold over payment a bit longer.

[22] Count 6.Mr Van Der Drift had three different items of equipment for sale in May 1997.These were a tractor, a motorbike trailer and a calf tent.The calf tent sold and the appellant accounted for the price after deducting his commission.Towards the end of 1997, after receiving a letter from the appellant's accountant, Mr Van Der Drift spoke to the appellant and was told that the tractor and trailer were still there.After learning of the collapse of the appellant's company Mr Van Der Drift against spoke to the appellant who told him that the tractor had been sold but that the trailer had not.He has received nothing from the sale of the tractor nor has he recovered the trailer.

[23] The appellant explained in his evidence that the tractor was sold on 9 October and, by reference to bank statements, explained that after allowing for the usual period before accounting for sales, the account was in overdraft and he was unable to pay.

[24] Count 7.On 27 May 1997 the appellant collected from Mrs Wood a tractor he was to sell on her behalf.According to her evidence, the appellant agreed that the tractor would not leave his yard until she had been paid for it.Without informing Mrs Wood, the appellant changed over the front loader attachment of her tractor and that of another tractor he was selling.Also without informing Mrs Wood, the appellant sold her tractor, as evidenced by a tax invoice dated 27 June 1997.

[25] When passing the yard Mrs Wood noticed that the tractor was no longer there.She called on the appellant expecting to receive payment.He told her he had a buyer but that payment had not been arranged.He assured her that the tractor was locked in a shed.He continued to prevaricate until finally, when pressed further, he admitted to Mrs Wood that he had received the money some time previously and wrote out a form of credit note acknowledging indebtedness of $13,725.

[26] In his evidence the appellant explained that he changed the front-end loaders on the two tractors to meet the requirements of respective purchasers, but he offered no explanation for not having paid Mrs Wood.

[27] Count 8.Mr McNabney had sold his farm in June 1997.He had a near-new tractor for sale and arranged for the appellant to take this to his yard for sale on his behalf on the basis that the appellant could retain anything received above $12,000.About 10 days later, Mr McNabney noticed his tractor on the yard with a different front-end loader fitted - that taken from Mrs Wood's tractor.He spoke to the appellant who told him that the tractor had been sold but there would be a delay in payment.Mr McNabney was told the tractor was locked in a shed.Payment not having been received, Mrs McNabney applied pressure to the appellant.Her persistence led to receipt of a cheque which was dishonoured, but subsequently she recovered two payments made in October and November, of sums amounting in total to $6,500.Shortly after the first of those payments was made, the appellant admitted to Mr McNabney that he had received payment at the time of sale.

[28] In his evidence the appellant referred to documents showing receipt of the purchase price on 20 May 1997 and deposit in the company bank account.He then demonstrated that within a matter of days the account was in debit so the company was unable to pay.The payments actually made coincided with borrowing from the appellant's sister.

[29] This is a case in which there was quite separate evidence relating to each count.Some of the evidence given by the appellant related generally to the financial position of his company over the relevant period and that was to be considered on each count.But he also dealt with the separate transactions. In R v Nuttal & Others CA260/99, judgment 17 December 1999, this Court said:

A brief glance at the commentary in Adams on Criminal Law, Ch 5.6.03 would have demonstrated that an appeal on the ground of inconsistent verdicts is not an opportunity to retry the case before the Court of Appeal in an attempt to establish that the jury should have assessed the evidence differently.Interference with verdicts on the ground of inconsistency is called for only where the difference in the verdicts requires that the jury have accepted certain evidence in relation to one count or in relation to one accused but must have rejected the same evidence in relation to another count or another accused:R v Jones (1997) 191 CLR 440.In such a case the verdicts cannot be differentiated rationally.However there is no inconsistency if different verdicts at a joint trial are explicable by differences in the evidence admissible against the accused:R v Osland [1998] HCA 75; (1998) 159 ALR 170;see also R v Tuhoro [1998] 3 NZLR 568, 579.In Osland McHugh J said:

When an appellate court sets aside a jury's verdict of guilty on the ground that it is inconsistent with a verdict of acquittal, it usually does so for one of two reasons.First, the verdict of acquittal may necessarily demonstrate that the jury did not accept evidence which they had to accept before they could bring in the verdict of guilty.Secondly, in acquitting the accused on one count, it may follow that the jury must have accepted evidence that required them to acquit on the count on which they convicted the accused. Sometimes, however, the verdicts may indicate that, if the jury did accept the evidence, it has misapplied or misunderstood the directions of law that it was given.

Whatever category fits the case, the setting aside of a conviction on the ground of inconsistency of verdicts is a recognition that the jury has erred in its conclusions either in evaluating the facts or in giving effect to the directions of law in the judge's charge.When the verdicts are in accordance with the evidence and the directions of the trial judge, inconsistency of verdicts is not a ground of appeal.

[30] That applies in this case.Where the jury were required to assess separate, and different, evidence in relation to each count there is little room for a complaint of inconsistent verdicts.

[31] In any event we are satisfied that there was ample room for a reasonable jury to reach the verdicts involved here.

[32] We draw nothing from the point that the verdicts given were on the odd numbered counts and the acquittals were on the even numbered counts.If the verdicts were reasonably open there is simply no room for any suggestion of some sort of capricious approach to alternate counts.

[33] It is not difficult to see a pattern in the verdicts such that the jury must have entertained sufficient doubt as to the appellant's intention to account for the moneys due to some of the complainants - albeit as a faint hope that his company's financial position would improve.On the other hand there was evidence to support the inference the jury plainly drew on the other counts, that the appellant dishonestly did not account.

[34] The jury seems to have accepted as support for his claimed intention to account the appellant's evidence of specific instances when, after deposit of moneys received on sale of the properties, the account was such that any cheque in payment would have been dishonoured.That was the case with the accounts relating to the property of Mr Davies, Mr Van Der Drift and the McNabneys. In the case of Mr Bargh - one item sold was accounted for.The bulldozer was sold in his presence so that there was no prospect of concealing that, and part payment for that was eventually made.

[35] On the other hand, the deceit and concealment in the cases of Mr Passau and Mrs Wood could well have influenced the jury to find dishonesty in those cases.They were not told of the sales of their respective property.Nor were Messrs Whitehead and Ingham.No voluntary payment was made to any of those four complainants.The appellant offered no specific explanation for not accounting to three of them and his explanation in the case of Mr Ingham was quite casual.

[36] There is therefore no justification in the evidence for a view that because the appellant was not found to have acted dishonestly in failing to account in respect of some transactions, it was irrational to find he dishonestly failed to account in respect of others.

[37] The appeal, therefore, is dismissed.

Solicitors

Crown Solicitor, Auckland